The GOP: Alienating People One Voter at a Time
Flying with Children

Well Ladies, Let's Get to It

[9/12/05 UPDATE: I was completely wrong about a strong resonance between Roberts and the PLF: They've come out against him. -KC]

Read this morning on CNN:

So while the public fight generally will be over policy (privacy, abortion, etc), the only real chance for a Democratic block of the confirmation lies in efforts that take place behind the scenes and inside the blogosphere.

NARAL makes much of this passage in a 7/21 NYT article about the nomination:

By 7:30 p.m. on Tuesday, as Mr. Bush was informing important members of the Senate before his 9 p.m. televised announcement, Karl Rove, the president's political adviser, was calling key conservatives to tell them that Judge Roberts was the pick. One of Mr. Rove's first calls was a conference call with Mr. Gray; Leonard Leo, the executive vice president of the Federalist Society and the head of Catholic outreach for the Republican Party; Jay Sekulow, the chief counsel of the American Center for Law and Justice, an evangelical group; and former Attorney General Edwin Meese III of the Heritage Foundation.

Mr. Sekulow and Mr. Leo were part of an outreach team of lawyers assembled by the White House to push Mr. Roberts with conservative groups. Both said on Wednesday that they had known Judge Roberts for years and attested to his conservatism with others in the movement.

Here is NARAL's analysis: Report Reveals Radical Right Uses Roberts' Work As Political Lawyer to Sell His Nomination

he New York Times reported today that two lawyers picked by the White House to lead the search for a Supreme Court nominee, Leonard Leo and Jay Sekulow, chief counsel of a legal center founded by Pat Robertson, "gradually won over most social conservatives to nearly unanimous support, even convincing them that the lack of a paper trail was an asset that made Judge Roberts harder to attack." [New York Times, 7/22/05]

The same article cited how Leo and Sekulow "made their case by recounting the briefs Judge Roberts had filed as a lawyer for Republican administrations, including one arguing against the validity of the abortion rights precedent Roe v. Wade." Sekulow specifically cited having worked "side by side" with Roberts, in apparent reference to the case on which they both worked defending Operation Rescue and other clinic protest groups that use violence and intimidation.

"John Roberts owes the American people the same degree of candor as he does his friends on the radical right -- whatever he's telling them that satisfies their concerns should be part of his public testimony as well. The same White House and radical right groups that are telling Americans to ignore John Roberts’ role as an activist lawyer in the Reagan and Bush administrations used his record of attacking Roe v. Wade to win over the most ardent anti-choice groups in the country," said Nancy Keenan, president of NARAL Pro-Choice America. "The 65 percent of Americans who support upholding Roe v. Wade know that John Roberts is not a moderate, consensus candidate. The radical right depended on John Roberts to fight to overturn Roe v. Wade during his tenure as a top political lawyer, and now they are fully assured that he will cast the final vote on the Supreme Court that overturns Roe v. Wade."

Some of the lowlights of Judge Roberts’ background include:

  • As Deputy Solicitor General, Roberts argued in a brief before the U.S. Supreme Court (in a case that did not implicate Roe v. Wade) that "[w]e continue to believe that Roe was wrongly decided and should be overruled…. [T]he Court’s conclusion in Roe that there is a fundamental right to an abortion… finds no support in the text, structure, or history of the Constitution."
  • In Rust v. Sullivan, the Supreme Court considered whether Department of Health and Human Services regulations limiting the ability of Title X recipients to engage in abortion-related activities violated various constitutional provisions. Roberts, appearing on behalf of HHS as Deputy Solicitor General, argued that this domestic gag rule did not violate constitutional protections.
  • Roberts, again as Deputy Solicitor General, filed a "friend of the court" brief for the United States supporting Operation Rescue and six other individuals who routinely blocked access to reproductive health care clinics, arguing that the protesters’ behavior did not amount to discrimination against women even though only women could exercise the right to seek an abortion.

As I said in Nathan Newman's comment section, in the context of Jane Roberts and Feminists for Life:

Overturning Roe v. Wade is the Koolaid the Bush cult is determined to drink. Trying will get them far politically. I think succeeding would have very negative repercussions for them. (If the fetal prognosis is bad enough for a pregnancy in the immediate family, nearly everyone becomes pro-choice.)

One doesn't have to read tea-leaves to recognize that Bush is going to expect of his nominee that he vote to overturn Roe v. Wade given the opportunity.

I think the key is to closely examine Roberts's pro bono work. His name turns up a fair amount in cases connected with the Pacific Legal Foundation, an arch conservative "public interest" law firm. My focus when looking into this was is relationship to the Endangered Species Act. But there are a bunch of others. My hunch is that his role in those cases was not as a paid attorney, but rather that he was offering pro bono assistance on some fairly nasty conservative pet casues. His advocates will claim these as simply representing the interests of his clients during his time as a private lawyer. If he providing his services on conservative causes free of charge, that argument doesn't wash.

Consider this passage from the Center for Corporate Policy:

Indeed, in 1973, the Pacific Legal Foundation, the first business-sponsored "public interest" law firm, was established in Sacramento, California. Two years later, the National Legal Center for the Public Interest was founded to help set up other pro-business nonprofit law firms in different regions across the country. "Since then," according to David Helvarg, author of The War Against the Greens, "twenty-two of these "free-enterprise" law firms have appeard... Every year the Heritage Foundation holds a conference where the directors of these firms come together and strategize."

The firms were buoyed by consistent funding from a number of corporations and right-wing foundations with ties to the corporate community, including Scaife, Bradley, Coors, and Olin. (For more on the right-wing foundations see Karen Paget, "Lessons of Right-Wing Philanthropy".

Although few of these corporate nonprofit firms are very large in comparison to the giant corporate law firms (few have more than a dozen attorneys on staff), most are well-organized, sustained by consistent financial support and well-networked, with ties to top law schools, corporate law firms and government officials, many of whom work on a pro bono basis in conjuncton with the legal foundations.

I think what I was observing was just that kind or relationship between Roberts and the Pacific  Legal Foundation.

I have to stop for now. But my next task should be to make a list of those cases, and also to see  if there are similar patterns observable in connection to any other the other conservative legal foundations on this list: